Allahabad High Court
Ravindra Sharma Son Of Ramchandra ... vs Santosh Kumar, H.C.P., Dasarath ... on 2 February, 2007
Author: A.P. Sahi
Bench: A.P. Sahi
JUDGMENT A.P. Sahi, J.
1. This contempt petition raises questions to be answered, keeping in view the recent amendments brought about in the Criminal Procedure Code, as would be referred to herein after, and also the scope and extent of the exercise of powers vested in this Court under Article 215 of the Constitution of India read with the provisions of Contempt of Courts Act, 1971. The applicants allege that they were detained unauthorizedly at Police Station Lar, District - Deoria, without following the procedure for arrest and in complete violation of the guidelines laid down by the Apex Court in Joginder Kumar's case and further elaborated in the celebrated decision of D.K. Basu v. State of West Bengal . The applicant alleges that he was detained in the night of 7/8.8.2005 and the applicant No. 2 was challaned under Section 151 Cr.P.C. in a manner which violated the aforesaid provisions, facts with regard to which have been stated in paragraphs 13 and 14 of this application. The applicant alleges that the opposite party Nos. 1 to 3 have, therefore, made themselves liable for contempt keeping in view the decision of the Apex Court referred to herein above.
2. The opposite parties have filed their Affidavit and have set up their defence denying the allegations and further that the applicant No. 2 had been arrested under Section 151 Cr.P.C.; and that the applicants had also approached the police station and at their instance an F.I.R. has also been lodged. The facts have been set out to indicate as to how the applicant No. 2 was arrested and then enlarged on bail. It is further alleged that the applicant No. 1 was never detained or arrested and, therefore, there was no violation at all so as to constitute any contempt as alleged by the applicants.
3. Learned Counsel for the applicant in the rejoinder on merits has urged that the entries made at the Police Station in the records Clearly indicate that the guidelines framed in O.K. Basil's case have been violated and have not been complied with at all.
4. This matter was taken up on 3.11.2006 on which date the Court raised certain queries and invited arguments for ascertaining as to whether an action for contempt can proceed in view of the recent amendments brought about in the Criminal Procedure Code through Act No. 25 of 2005. On the request of the Court, the Advocate General of State of U.P. Sri S.M.A. Kazmi assisted by Sri Arvind Kumar, learned Addl. Chief Standing Counsel have also advanced their submissions throwing light on the issues raised in this contempt application. The prime issue which has come up for consideration is as to whether after the amendments that have been brought about in the Criminal Procedure Code, can this Court still proceed to take action for contempt for violation of the guidelines prescribed in D.K. Basu's case (supra).
5. Sri P.K. Singh, learned Counsel for the applicant, has invited the attention of the Court to the amendments brought about in the Criminal Procedure Code and has urged that the said amendments are insufficient and do not contain all the provisions as indicated in the guidelines framed by the Apex Court in D.K. Basu's case. He, therefore, contends that the said decision still holds the field and any violation of the provisions contained therein makes one liable for contempt. With the able assistant of all the learned Counsels, the facts that emerge are as follows.
6. The Apex Court, while dealing with a case of an unauthorized detention in the case of Joginder Kumar v. State of U.P. and Ors. (supra), laid down in paras 21 to 22 as under:
21. Then, there is the right to have someone informed. that right of the arrested person, upon request, to have someone informed and to consult privately with a lawyer was recognised by Section 56(1) of the Police and Criminal Evidence Act, 1984 in England (Civil Actions Against the Police - Rechard Clayton and and Hugh Tomlinson; p. 313). That section provides:
[W]here a person has been arrested and is being held in custody in a police station or other premises, he shall be entitled, if he so requests, to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told, as soon as is practicable except to the extent that delay is permitted by this section, that he has been arrested and is being detained there.
These rights are inherent in Articles 21 and 22(1) of the Constitution and require to be recognised and scrupulously protected, for effective enforcement of these fundamental rights, we issue the following requirements:
1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.
2. The police officer shall inform the arrested person when he is brought to the police station of this right.
3. An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.
It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.
22. The above requirements shall be followed in all case of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights of the arrested persons found in the various police manuals.
7. The aforesaid directions became subject matter of consideration by the Law Commission of India, and its 152nd report on custodial crimes recommended certain amendments to be brought about in the Criminal Procedure Code. The aforesaid recommendations were again repeated and reiterated in the 154th report of the Law Commission of India tendered in the year 1996. Chapter IV of the said report contains exhaustive recommendations for bringing about amendments relating to the law of arrest. Paragraph No. 9 of the said report is quoted below which reiterates its earlier recommendations for bringing about an amendment and introducing Section 50A in the Code of Criminal Procedure:
50A. (1) Whenever a person is arrested by a police officer, intimation of the arrest shall be immediately sent by the police officer (along with intimation about the place of detention) to the following person:
(a) a relative or friend or other person known to the arrested person, as may be nominated by the arrested person:
(b) failing (a) above, the local legal aid committee.
(2) Such intimation shall be sent by telegram or telephone, as may be convenient, and the fact that such intimation has been sent shall be recorded by the police officer under the signature of the arrested person.
(3) The police officer shall prepare a custody memo and body receipt of the person arrested, duly signed by him and by two witnesses of the locality where the arrest has been made, and deliver the same to a relative of the person arrested, if he is present at the time of arrest or, in his absence, send the same along with the intimation of arrest to the person mentioned in (1) above.
(4) The custody memo referred to in (3) above shall contain the following particulars:
(i) name of the person arrested and father's name or husband's name;
(ii) address of the person arrested;
(iii) date, time and place of arrest;
(iv) offence for which the arrest has been made;
(v) property, if any, recovered from the person arrested and taken into charge at the time of the arrest; and
(vi) any bodily injury which may be apparent, at the time of arrest.
(5) During the interrogation of an arrested person, his, legal practitioner shall be allowed to remain present.
(6) The police officer shall inform the person arrested, as soon as he is brought to the police station, of the contents of this section and shall make an entry in the police diary about the following facts:
(a) the person who was informed of the arrest;
(b) the facts that the person arrested has been informed of the contents of this section; and
(c) the fact that a custody memo has been prepared, as required by this section.
8. Then came the celebrated decision in D.K. Basil's case wherein directions were issued as contained in paragraph Nos. 34 to 39 of the said decision quoted herein below:
34. In addition to the statutory and constitutional requirement to which we have made a reference, we are of the view that it would be useful and effective to structure appropriate machinery for contemporaneous recording and notification of all cases of arrest and detention to bring in transparency and accountability, it is desirable that the officer arresting a person should prepare a memo of his arrest at the time of arrest in the presence of at least one witness who may be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. The date and time of arrest shall be recorded in the memo which must also be countersigned by the arrestee.
35. We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:
(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designation. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family; of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
36. Failure to comply with the requirements herein above mentioned shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.
37. The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier.
38. These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.
39. The requirements mentioned above shall be forwarded to the Director General of Police and the Home Secretary of every State/Union Territory and it shall be their obligation to circulate the same to every police station under their charge and get the same notified at every police station at a conspicuous place. It would also be useful and serve larger interest to broadcast the requirements on All India Radio besides being shown on the National Network of Doordarshan any by publishing and distributing pamphlets in the local language containing these requirements for information of the general public. Creating awareness about the rights of the arrestee would in our opinion be a step in the right direction to combat the evil of custodial crime and bring in transparency and accountability. it is hjoped that these requirements would help to curb, if not totally eliminate, the use of questionable methods during interrogation and investigation leading to custodial commission of crimes.
9. This was followed by another order while monitoring the compliance of the aforesaid guidelines which order is a copy whereof has been appended as Annexure-7 to this application.
10. Consequent to the aforesaid directions in D.K. Basu's case, the then Director General of Police, Uttar Pradesh, issued a Circular on 29.3.1997 quoted herein below:
ifji= la0& 7@97 izs"kd] gfjnkl jko iqfyl egkfuns'kd] m0 iz0] y[kum A lsok esa] leLr iqfyl egkfuns'kd@vij iqfyl egkfuns'kd] m0 iz0A leLr iqfyl egkfujh{kd] tksUl] m0 iz0A leLr iqfyl mi egkfujh{kd] ifj{ks=] m0 iz0A leLr ofj"B iqfyl v/kh{kd@iqfyl v/kh{kd] m0iz0A izHkkjh i=kad% Mhth@ek0 iz0 & 2@97 fnukad% ekpZ 29] 1997 fo"k;% fxjQ~rkjh ds laca/k esa fjV ;kfpdk la0& 539@86 Mh0 ds0 clq cuke jkT; ljdkj if'peh caxky fu.khZr fnukad 18-12-1996 esa ek0 mPpre U;k;ky; }kjk fn;s x;s fn'kk&funsZ'kksa ds vUrxZr dk;Zokgh dk lqfuf'pr fd;k tkukA egksn;] ek0 mPpre U;k;ky; us le; le; ij vius fu.kZ;ksa esa fxjQ~rkjh dh izfdz;k ds laca/k esa vko';d fn'kk&funsZ'k ,oa ekxZn'kZu fn;s gSA ek0 mPpre U;k;ky; us fjV ;kfpdk fd la0 539@86 Mh0 ds0 clq cuke jkT; ljdkj if'peh caxky esa fnukad 18-12-1996 dks ikfjr vius fu.kZ; esa ekxZn'kZd funsZ'k fu/kkZfjr fd;k gS] tks fuEuor~ gS%& 1& iqfyl dehZ tks fxjQ~rkjh djrs gS rFkk fxjQ~rkj O;fDr ls iwWNrkN djrs gS mUgsa 'kq)] Li"Vn'khZ o lkQ igpku dh uke ifV~Vdk /kkj.k djuh pkfg,A onhZ ds lkFk muds in ds cSt vo'; gksaA mu lHkh iqfyl dfeZ;ksa dk tks fxjQ~rkj O;fDr ls iwWNrkN djrs gSa] fooj.k ,d jftLVj esa vafdr fd;k tkuk pkfg,A 2& O;fDr dh fxjQ~rkjh ds le; iqfyl vf/kdkjh ,d QnZ eseks rS;kj djsxk] ftls de ls de ,d O;fDr@xokg }kjk izekf.kr fd;k tk;sxk tks ;k rks vfHk;qDr ds ifjokj dk lnL; gks vFkok ml {ks= dk lEekfur O;fDr gks tgka ij fxjQ~rkjh dh x;hA bl QnZ ij vfHk;qDr }kjk Hkh izfrgLrk{kj djk;k tk;sxk rFkk bl ij fxjQ~rkjh dk le; o fnukad Hkh vafdr gksuk pkfg,A 3& tks O;fDr fxjQ~rkj fd;k x;k gS vFkok fu:) fd;k x;k gS ;k fdlh Fkkus dh vfHkj{kk esa@iwWNrkN dsUnz ij gS ;k ykWdvi@gokykr esa gS] dks ;g vf/kdkj gksxk fd mlds fdlh fe=@fj'rsnkj vFkok ,sls O;fDr dks tks mlls HkyhHkkafr ifjfpr gks vkSj mldk fgrS"kh gks] dks ftruk 'kh?kz lEHko gks lk/;&lk/ku ls lwpuk Hksth tk;sxh vkSj ftlesa ;g Li"V :i ls crk;k tk;sxk fd veqd O;fDr fxjQ~rkj fd;k x;k gS vkSj veqd LFkku ij fu:) fd;k x;k gSA ;g izfrcU/k ,sls ekeyksa ij ykxw gksxk] ftuesa fxjQ~rkjh ds eseks ij fxjQ~rkj fd;s x;s O;fDr ds fe= vFkok mlds laca/kh ds gLrk{kj djk;s x;s gksaA 4& ;fn fxjQ~rkj fd;s x;s O;fDr ds fe= vFkok fj'rsnkj ftys ;k dLcs ds ckgj ds jgus okys gSA rks mUgsa ftys dh ^^yhxy ,.M vkxsZukbts'ku** ,oa lacaf/kr Fkkus }kjk ok;jySl@VsyhxzkQ ds tfj;s lwpuk fxjQ~rkjh dk le; ,oa LFkku vafdr djrs gq, 8 ls 12 ?k.Vs ds vUnj vo'; ns nh tk;sxhA 5& tSls gh dksbZ O;fDr dh fxjQ~rkjh gksrk gS] iqfyl dk ;g nkf;Ro gksxk fd og mls vius bl vf/kdkj ls voxr djk ns fd og viuh fxjQ~rkjh ,oa vo:f) ds laca/k esa fdlh dks lwpuk ns ldrk gSA 6& fdlh O;fDr dh fxjQ~rkjh ds laca/k esa fu:) j[ks tkus ds LFkku ij Mk;jh esa ;g vafdr fd;k tkuk t:jh gS fd fxjQ~rkj O;fDr ds fdl fe=@fj'rsnkj dks fxjQ~rkjh dh lwpuk nh x;hA mu iqfyl dfeZ;ksa ds uke Hkh vafdr fd;s tka;] ftudh vfHkj{kk esa fxjQ~rkj O;fDr dks j[kk x;k gSA 7& ;fn fxjQ~rkj O;fDr izkFkZuk djrk gS rks fxjQ~rkjh ds le; mlds 'kjhj dh izR;sd cM+h ,oa NksVh pksVksa dk fujh{k.k djds fooj.k fujh{k.k eseks ij vafdr fd;k tk;sxkA bl fujh{k.k eseks ij fxjQ~rkj o;fDr rFkk iqfyl vf/kdkjh nksuksa ds gLrk{kj djk;s tka; rFkk QnZ dh ,d izfr fxjQ~rkj O;fDr dks Hkh nh tk;A 8& gj fxjQ~rkj fd;s x;s O;fDr dh MkDVjh ijh{kk mldh fu:f) ds gj 48 ?k.Vs ds vUnj izf'kf{kr MkDVj }kjk vo'; djk;h tk;] tks egkfuns'kd] fpfdRlk ,oa LokLF; }kjk vuqeksfnr iSusy ij gksA 'kklu ls vuqjks/k fd;k x;k gS fd og egkfuns'kd] fpfdRlk ,oa LokLFk }kjk izR;sd ftys o rglhy Lrj ij ,sls izf'kf{kr MkDVlZ ds iSusy rS;kj djk nsA 9& lHkh vfHkys[kksa dh izfr;ka fxjQ~rkjh dh QnZ lfgr tSlk fd mij lanfHkZr fd;k x;k gS] {ks= ds eftLV~zsV dks muds fjdkMZ ds fy, Hksth tk;sxhA 10& cUnh cuk;s x;s O;fDr dks iwWNrkN ds e/; vius vf/koDrk ls feyus dh vuqefr nh tk ldrh gS ijUrq ,slh lqfo/kk lEiw.kZ iwWNrkN ds e/; vuqeU; ugha gksxhA 11& izR;sd jkT; eq[;ky; ,oa ftys Lrj ij ,d iqfyl dUV~zksy :e cuk;k tk;s tgkWa izR;sd fxjQ~rkj fd;s tkus okys O;fDr o LFkku dh lwpuk fxjQ~rkj djus okys vf/kdkjh }kjk 12 ?k.Vs dh vof/k ds Hkhrj nh tk;sxhA dUV~zksy :e ds ckgj ,d uksfVl cksMZ yxk;k tk;sxk] ftlij lgtn`'; ;g lwpuk Li"V vafdr dh tk;sxhA 12& ek0 mPpre U;k;ky; dk ;g egRoiw.kZ fu.kZ; leLr Hkkjro"kZ esa izHkkoh gS ,oa lkFk gh lkFk ;g fof/kd O;oLFkk dk izeq[k vax Hkh gSA vr% vki lcdks funsZf'kr fd;k tkrk gS fd mijksDr of.kZr O;oLFkkvksa dks /;ku esa j[kdj gh fxjQ~rkjh dh izfdz;k viuk;h tk;s vkSj lHkh vkSipkfjdrk;sa vfuok;Z :i ls iw.kZ dh tk;A ek0 mPpre U;k;ky; }kjk ;g Hkh funsZ'k fn;s x;s gSa fd ;fn fdlh iqfyl vf/kdkjh }kjk mijksDr of.kZr izkfo/kkuksa dk vfrdze.k fd;k tkrk gS rks mlds fo:) foHkkxh; dk;Zokgh ds lkFk&lkFk U;k;ky; dh voekuuk ds fy, nf.Mr Hkh fd;k tk ldrk gSA bl voekuuk dh dk;Zokgh ds fy, izR;sd izns'k dk mPp U;k;ky; l{ke gksxkA 13& mijksDr of.kZr funZs'k lafo/kku ds vuqPNsn 21 ,oa 22 1 ds fdz;kUo;u ,oa vuqj{k.k gsrq iznku fd;s x;s gSa vkSj budk vuqikyu lHkh jktdh; bdkbZ;ksa ds }kjk vfuok;Z :i ls fd;k tk;sxkA 14- ek0 mPpre U;k;ky; ds }kjk fn;s x;s mijksDr fn'kk&funsZ'kksa dks izR;sd Fkkus ds lgtn`'; LFkku ij iznf'kZr fd;k tk;sxk rkfd tu&lk/kkj.k bu fn'kk&funsZ'kksa ls voxr gks ldsA 15- vr% vuqjks/k gS fd ek0 mPpre U;k;ky; }kjk nh x;h O;oLFkk ,oa fn'kk&funsZ'kksa dk v{kj;k% vuqikyu lqfuf'pr djk;s tkus gsrq vki lHkh v/khuLFk vf/kdkfj;ksa@deZpkfj;ksa dh ,d fo'ks"k ehfVax vkgwr dj mUgsa ek0 mPpre U;k;ky; ds fu.kZ; ls iw.kZ&:is.k voxr djk nsaA lqyHk lanHkZ gsrq lanfHkZr fu.kZ; ds m)j.k dh Nk;kizfr layXu dh tk jgh gSA layXud% ;FkksifjA Hkonh;] gk0@& viBuh;
gfjnkl jko iqfyl egkfuns'kd] m0 iz0A izfrfyfi izeq[k lfpo x`g m0iz0 'kklu] y[kum dks lwpukFkZ ,oa bl vuqjks/k ds lkFk izsf"kr fd funs'kd] LokLF; ,oa fpfdRlk dks mijksDr fu.kZ; ds fcUnq la0&8 ds lanHkZ esa 'kklu Lrj ls mfpr fn'kk&funsZ'k tkjh djkus dk d"V djsaA blh ds lkFk lkFk ;g Hkh vuqjks/k gS fd ek0 mPpre U;k;ky; ds funsZ'kkuqlkj nwjn'kZu@vkdk'kok.kh ij izlkfjr djkosa ,oa LFkkuh; Hkk"kk esa gSaMfcy rS;kj djkdj forfjr djkus ds laca/k esa Hkh dk;Zokgh djus ij fopkj dj ysaA Hkonh;] gfjnkl jko iqfyl egkfuns'kd] m0 iz0A
11. It appears that in compliance of the aforesaid directions issued, the relevant proforma to be filled in at the time of arrest included informations indicated as follows:
izk:i&1 fxjQ~rkjh dk izi= %& 1- vfHk;qDr dk uke] firk dk uke o iwjk irk 2- vijk/k la[;k o /kkjk ftlesa okafMr gS 3- fxjQ~rkjh dk LFkku] fnukad o le;
4- fxjQrkjh djus okys iqfyl dfeZ;ksa dk uke inuke@O;fDrxr uEcj o fu;qfDr dk LFkku 5- LFkkuh; lk{kh ftldh mkfLFkrh esa fxjQ~rkjh dh x;h& 6- fxjQ~rkjh ds le; vfHk;qDr ls izkIr /kujkf'k o oLrq vkfn dk fooj.k& 7- lk{khx.k ds gLrk{kj& 1- 2- 3- 8- vfHk;qDr dk gLrk{kj& 9- iqfyl vf/kdkjh@deZpkjh dk gLrk{kj izk:i&2 fxjQ~rkjh lwpuk i= ,oa ftyk fof/kd lsok izkf/kdj.k dks nh tkus okyh lwpuk%& 1- tuin dk uke%& 2- vfHkj{kk esa fy, x;s O;fDr dk uke@firk dk uke@ irk 3- vfHkj{kk esa ysus dh frfFk%& 4- vijk/k la[;k@/kkjk@Fkkuk%& 5- fdlds }kjk fxjQ~rkj fd;k x;k%& 6- fxjQ~rkjh ds ckn dgkW ij j[kk x;k gSA 7- fe=@lEcU/kh dk uke o irk ftls lwpuk nsuh gSA
12. The 177th report of the Law Commission on the law relating to arrest was forwarded by a letter dated 14.12.2001 to the Minister of Law and Justice by the then Chairman of Law Commission of India Hon. Mr. Justice B.P. Jeevan Reddy. The said recommendation included suggestions for implementing the decisions in D.K. Basu's case and was incorporated as Chapter VIII therein. The same is quoted herein below:
Chapter Eight Implementing the decision in D.K. Basu In para 3.3. of the Consultation Paper, it was proposed that the several directions/safeguards enunciated in the decision of the Supreme Court in D.K. Basu should be incorporated in the Code by appropriate amendments. There was in fact no opposition to this proposal at all. Indeed, there can't be any for the simple reason that the decision itself directs that the said decisions will be effective "till legal provisions are made in that behalf. More important, the decision also states that the directions/safeguards issued in the said decision" flow from articles 21 and 22(1) of the Constitution and need to be strictly followed", it was also made clear that the said requirements do not detract from the existing constitutional safeguards nor do they detract from various other directions given by the court from time to time in connection with the safeguarding of the rights and dignity of the arrested person. The eleven directions/safeguards issued in the said decision have already been set out in Chapter Three of this Report.
It may be mentioned that similar provisions have also been recommended by the Law Commission on previous occasions referred to in Chapter Four of this Report. We may refer in this connection to the recommendations contained in the 152nd Report on Custodial Crimes (1994) (four recommendations in all) and to the recommendations contained in 154th Report on code of Criminal procedure for insertion of a new Sub-section, Sub-section 93) in Section 41 and for insertion of a new section, Section 41 A. Reference may also be made to the "Guidelines for making arrests" contained in the Report of the National Police Commission (para 22.28). Indeed, the Criminal procedure Code (Amendment) Bill, 1994 proposed to insert Section 50A providing for giving information of the arrest of such persons as may be nominated by the arrested persons. The Parliamentary Committee which examined the said provision in the Amendment Bill has further recommended for making it more comprehensive and more effective as has been stated in Chapter Four. The proposals contained in the said Amendment Bill for insertion of a new sub-section, Sub-section (2) in Section 54, and the insertion of a new section, Section 54A, are equally relevant in this behalf. Accordingly, it is recommended that the aforesaid directions in D.K. Basu be incorporated in Chapter V of the Code of Criminal Procedure, along with the consequences for not complying with such directions/provisions. It is obvious that by incorporating the said directions into the code, the sanction now operating (contempt of Court) under and by virtue of the directions contained in the said decision, would not disappear. Evidently, the violation of the proposed provisions in Sections 41A to 4ID would constitute an offence within the meaning of Section 166 IPC, which not being a provision relating to contempt of subordinate courts would not also attract proviso to Section 10 Of the Contempt of Courts Act, 1971 (see Bathina Ramakrishna Reddy v. State of Madras and State of Madhya Pradesh v. Reva Shankar ). It would be a case of contempt under and by virtue of the directions aforesaid. Be that as it may, any violation of the provisions being made in terms of the decision in D.K. Basu would clearly constitute an offence within the meaning of and as defined by Section 166 of IPC apart from and in addition to constituting a contempt of court as laid down in D.K. Basu. It shall be open to a person affected by such violation or non-observance of the proposed provisions to lodge a complaint according to law. Section 166 IPC may also be suitably amended to clarify that violation of the provisions in Sections 41 to 4ID of Cr.P.C. shall constitute an offence thereunder.
13. This recommendation clearly indicated that the amendment bill tabled by the Government for inserting several provisions in the Code of Criminal Procedure Code would even after incorporation not impede the power of the High Court to take action for contempt. The aforesaid recommendations were made on the basis of a consultation paper which was prepared after deliberations and collecting material from all the States through out the country. The said consultation paper has been placed before me and is also available on Internet facilities.
14. The Director General of Police, Uttar Pradesh, circulated a letter on 14.4.2002 stating therein that there were discrepancies found in the implementation of the guidelines laid down in D.K. Basu's case and, as such, appropriate measures were suggested for maintaining the records in a police station to be maintained and followed by the authorities. The authorities were also directed to inform their superior officers about the implementation as per the aforesaid directions. The said Circular is also quoted in its entirety herein below:
Jh vkj ds if.Mr iqfyl egkfuns'kd] m0 iz0 y[kum ds ifji= la[;k%& Mhth&ekiz&38@02 fnukad% vizSy 14, 2002 dh izfrfyfi%& fo"k;%& fxjQ~rkjh ds lEcU/k esa ek0 loksZPp U;k;ky; }kjk Mh0 ds0 clq dsl esa fu.khZr fn'kk funsZ'kksa dk vuqikyu lqfuf'pr fd;k tkuk rFkk vfHkys[kksa ds j[k&j[kko gsrq izk:iksa dk fu/kkZj.kA
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egksn;] mi;ZqDr fo"k; esa ek0 loksZPp U;k;ky; }kjk fxjQ~rkjh ds lEcU/k esa fjV ;kfpdk la[;k% 539@86 Mh ds clq cuke jkT; ljdkj if'pe caxky ds fu.kZ; fnukad 18-12-1996 esa 11 fn'kk&funZs'k fn;s x;s gSA bu fn'kk funsZ'kksa dk v{kj'k% vuqikyu lqfuf'pr djk;s tkus gsrq ifji= la[;k% 7@1997 fnukad 29-03-1997 esa vki lHkh dks foLr`r fn'kk funsZ'k fuxZr fd;s x;s FksA le; le; ij vU; funsZ'k Hkh bl lEcU/k esa fn;s x;s gSaA 2& ekuuh; mPpre U;k;ky; ds vkns'k ij mRrj izns'k esa fn'kk funsZ'kksa dk vuqikyu lqfuf'pr djus ds fy, U;k;ewfrZ Jh vpy fogkjh JhokLro dh v/;{krk esa ,d desVh Qkj ekuhVfjax dEiykbUl vkQ lqizhe dksVZ Mk;jsD'kUl bu Mh0 ds0 clq dsl xfBr fd;s x;s gSA foxr fnuksa esa bl desVh ds lnL;ks ,oa ekuokf/kdkj izdks"B ds iqfyl vf/kdkfj;ksa }kjk dfri; Fkkuksa dk fufj{k.k fd;k x;kA laKku esa vk;k gS fd fn'kk funsZ'kksa ds vuqiky esa Fkkuk Lrj ij lwpuk,a ,oa vfHkys[k viw.kZ gSA fxjQ~rkjh fu;eksa ,oa iwWNrkN jftLVj vkfn esa fHkUurk,Wa gSA Mh0 ds0 clq dsl esa fn'kk funsZ'kksa dks vafdr dj Fkkuk esa tks cksMZ yxk;s x;s gSa] muesa v{kj feV tkus ls iBuh; ugha gS vkSj cksMZ esa ekuokf/kdkj lEcU/kh rFkk vU; ckrsa feykdj fyf[k gqbZ gSA 3& leLr Fkkuksa esa tks cksMZ igys ls yxs gq, gSa] mudks iqu% is.V djkds lcls mijh Hkkx esa Mh0 ds0 clq dsl ls lEcfU/kr ekuuh; mPpre U;k;ky; ds funsZ'kksa dks vafdr djk;k tk;A mlds uhps ekuokf/kdkj ,oa vU; funsZ'kksa dks vyx&vyx vafdr fd;k tk;A ;g cksMZ ,sls LFkku ij yxk;k tk; tks Fkkus esa vkus okys O;fDr;ksa dks lqyHk n'kZuh; gks rFkk cksMZ lqjf{kr jgsA is.V djkus o iqu% fy[kkus esa vkus okys O;; dks vU; Nqnz vkdfLed O;; ls ogu fd;k tk;A bldh vuqikyu vk[;k 15 fnu ds vUnj vij iqfyl egkfuns'kd] ekuokf/kdkj dks vij }kjk vo'; Hksth tk;A 4& vfHkys[kksa ds j[k&j[kko rFkk fn'kk funsZ'kksa ds vuqikyu esa Fkkuk Lrj ij tks viw.kZ lwpuk,a j[kh tk jgh gSa rFkk fHkUurkvksa dk nwj djus gsrq funsZ'kkuqlkj izk:i la[;k&1 ls 5 rd dks rS;kj djds layXu fd;k tk jgk gSA blls lEcfU/kr vf/kdkjh@deZpkjh dks fy[kus esa lqfo/kk ,oa ,d:irk gksxh rFkk lHkh vko';d lwpuk,a Hkh vafdr gksxhA izk:i ds fo"k; esa mijksDr lanfHkZr ifji= la[;k 7@97 fnukad 29-3-1997 esa mfYyf[kr& 11 fcUnqvksa dh vksj fo'ks"k /;ku nsus dh vko';drk gSA 5& izk:i la[;k%& 1 dks rhu izfr;ksa mDr ifji= ds funsZ'k la[;k%& 2 ds vuqlkj o;fDr dh fxjQ~rkjh ds le; fxjQ~rkj djus okyk iqfyl vf/kdkjh rS;kj djsxk] ftls de ls de ,d O;fDr@ xokg }kjk izekf.kr fd;k tk;sxk tks ;k rks vfHk;qDr ds ifjokj dk lnL; gks vFkok ml {ks= dk lEekfur o;fDr gks tgkWa ij fxjQ~rkjh dh x;hA bl QnZ dks vfHk;qDr }kjk Hkh izfrgLrk{kj djk;k tk;sxk rFkk bl ij fxjQ~rkjh dk le; o fnukad Hkh vafdr gksuk pkfg;sA 6& izk:i la[;k&2 dk iz;ksx mDr ifji= ds funsZ'k la[;k&3 ds vuq:i tks O;fDr fxjQ~rkj ;k fu:) fd;k x;k gS ;k ykdvi@gokykr esa gS] ds fe=@ fjLrsnkj vFkok ,sls O;fDr dks tks mlls Hkyh&HkkWfr ifjfpr gks vkSj mldk fgrS"kh gks] dks ftruk 'kh?kz lEHko gks] lk?; lk/ku ls lwpuk Hksth tk;sxhA 7& izk:i&3 esa mDr ifji= ds funsZ'k la[;k&7 ds vuqlkj fxjQ~rkj O;fDr dh izkFkZuk ij fxjQ~rkjh ds le; mlds 'kjhj dks izR;sd cM+h ,oa NksVh pksVksa dk fujh{k.k djds fooj.k vafdr fd;k tk;sxkA bl ij fxjQ~rkj O;fDr rFkk iqfyl vf/kdkjh nksuksa ds gLrk{kj gksxsa rFkk QnZ dh ,d izfr fxjQ~rkj O;fDr dks Hkh nh tk;sxhA 8& izk:i 4 esa mDr ifji= ds funsZ'k la[;k&4 ds vuqlkj fxjQ~rkj fd;s x;s fe= vFkok fj'rsnkj ftys ds ckgj jgus okys gSa rks mUgsa ftys dh yhxy vkSFkksfjVh ,oa lEcfU/kr Fkkus }kjk iqfyl v/kh{kd ds ek/;e ls jsfM;ksxzke@QSDl ds tfj;s 8 ls 12 ?k.Vs ds vUnj lwpuk nh tk;sxhA 9& izk:i & 5 ds vuqlkj ,d jftLVj izR;sd Fkkuk ij jgsxk] ftlesa mDr ifji= ds funsZ'k la[;k& 1 ds vuqlkj iqfyldehZ tks fxjQ~rkj djrs gSa rFkk fxjQ~rkj O;fDr ls iqNrkN djrs gSa mudk fooj.k bl jftLVj esa fy[kk tk;sxkA 10& vki vius v/khuLFk lHkh iqfyl vf/kdkfj;ksa@deZpkfj;ksa dks iqu% Hkyh&HkkWafr voxr djk nsa fd ekuuh; mPpre U;k;ky; ds lHkh fn'kk&funsZ'kksa dks Hkyh&HkkWafr le> ysa vkSj mudk vuqikyu lqfuf'pr fd;k tk;sA ;fn budk vfrdze.k fd;k tkrk gS rks mlds fo:) foHkkxh; dk;Zokgh ds lkFk&lkFk U;k;ky; dh voekuuk ls Hkh nf.Mr fd;k tk ldrk gSA 11& vf/kdrj iqfyl Fkkuk ij Mh0 ds0 clq dsl ls lEcfU/kr ekuuh; mPpre U;k;ky; ds funsZ'kksa ,oa ekuokf/kdkj lEcU/kh funsZ'kksa dh ladfyr i=koyh dk j[k&j[kko ugha fd;k x;k gSA lHkh Fkkuk izHkkfj;ksa dh O;fDrxr ftEesnkjh fu/kkZfjr dh tk;s fd budk j[k&j[kko ladfyr :i ls lqfuf'pr djsaA 12& tksu ds leLr iqfyl egkfujh{kd ,oa iqfyl mi egkfujh{kd ifj{ks=x.k ftyksa ds okf"kZd ,oa ekulwu fujh{k.k ds nkSjku ek0 mPpre U;k;ky; }kjk Mh0 ds0 clq dsl esa fu.khZr fn'kk&funsZ'kksa dk vuqikyu Hkh ns[ksaxsA bl lEcU/k esa vius fujh{k.k uksV esa ,d vyx 'kh"kZd ds vUrxZr foLrkj lfgr fVIi.kh vafdr djsaxsaA ;g vf/kdkjh ftyksa ,oa Fkkuksa ds vkdfLed fujh{k.k ds le; Hkh mijksDr funsZ'kksa dk vuqikyu ns[ksaxs vkSj vius fujh{k.k uksV esa vafdr djsaxsaA tuin ds izHkkjh ofj"B iqfyl v/kh{kd@ iqfyl v/kh{kd o vU; bdkbZ;ksa ds ofj"B iqfyl vf/kdkjhx.k vius v/khuLFk bdkbZ;ksa ds okf"kZd ,oa ekulwu fujh{k.k djrs le; Mh0 ds0 clq dsl esa fu.khZr fn'kk&funsZ'kksa ds vuqikyu dh leh{kk djsaxsa vkSj muds ckjs esa vyx 'kh"kZd ds vUrxZr viuh fVIi.kh vafdr djsaxsA funs'kksa ds vuqikyu vf/kuLFk vf/kdkfj;ksa }kjk dh tkus okyh vogsyuk] f'kfFkyrk ,oa ykijokgh djus esa nks"kh iqfyl dfeZ;ksa ds fo:) leqfpr n.M nsusa dh Hkh dk;Zokgh lqfuf'pr djsaxsA 13& i= ds lkFk layXu izk:iksa dh vko';drkuqlkj izfr;ka djkdj izR;sd Fkkus ij miyC/k djkus dh O;oLFkk djsa] rFkk izk:iksa ds vuqlkj lHkh Fkkuk Lrj ij dk;Zokgh fd;s tkus dh vuqikyu vk[;k 15 fnu ds vUnj lh/ks vij iqfyl egkfuns'kd] ekuokf/kdkj dks Hksth tk;A 14& ;g egRoiw.kZ ,oa le;o} izdj.k gS] blesa f'kfFkyrk ik;s tkus ij ekuuh; mPpre U;k;ky; Lrj ls Hkh dk;Zokgh gks ldrh gSA vr% blesa O;fDrxr /;ku nsus dh vko';drk gSA layXud% ;FkksifjA ...................................................................................
dk;kZy; ofj"B iqfyl v/kh{kd bykgkcknA
i= la[;k%& i&541/2001 fnukad ebZ% 10] 2002
izfrfyfi%& fuEufyf[kr dks lwpukFkZ ,oa bl vk'k; ls fd mijksDr funZs'kksa dk dM+kbZ ls vuqikyu lqfuf'pr djrs@djkrs gq, vuqikyu vk[;k ,d lIrkg fnukad% 18-5-2002 rd izR;sd n'kk esa miyC/k djkus dh O;oLFkk djsa] rkfd rn~uqlkj vuqikyu vk[;k ekuuh; vk;ksx ,oa iqfyl egkfuns'kd] egksn; dks vka[;k izsf"kr dh tk ldsA d`i;k le; lhek dk /;ku j[krs gq, vk[;k miyC/k djkuk lqfuf'pr djsaA 1& iqfyl v/kh{kd& uxj@ xaxkikj@ tequkikjA 2& leLr {ks=kf/kdkjh& uxj@nsgkar@izKkuA 3& leLr Fkkuk izHkkjh & uxj@ nsgkar dks iqu% funsZf'kr fd;k tkrk gS fd vuqikyu vk[;k }kjk mfpr ek/;e vius&vius iqfyl v/kh{kd dks miyC/k djk;saA gk0@ viBuh;
ofj"B iqfyl v/kh{kd] bykgkcknA fxjQ~rkjh dk izi= 1- vfHk;qDr dk uke] firk dk uke o iwjk irk] 2- vijk/k la[;k o /kkjk ,oa Fkkuk ftlesa okafNr gS] 3- fxjQ~rkjh dk LFkku] fnukad o le;
4- fxjQ~rkj djus okys iqfyldfeZ;kas dk uke] in uke] O;fDrxr ua0 o fu;qfDr dk LFkku 5- LFkkuh; lk{kh ftldh mifLFkfr esa fxjQ~rkjh dh x;h 6- fxjQ~rkjh ds le; vfHk;qDr ls izkIr /kujkf'k o oLrq vkfn dk fooj.k 7- lk{khx.k ds gLrk{kj 1- 2- 8- vfHk;qDr dk gLrk{kj 9- iqfyl vf/kdkjh@deZpkfj;ksa dk gLrk{kj izk:i 2 fxjQ~rkjh lwpuki= ,oa ftyk fof/kd lsok izkf/kdj.k dks nh tkus okyh lwpuk 1- tuin dk uke 2- vfHkj{kk esa fy;s x;s O;fDr dk uke] firk dk uke o iwjk irk 3- vfHkj{kk esa ysus dh frfFk 4- vijk/k la[;k] /kkjk o Fkkuk 5- fdlds }kjk fxjQ~rkj fd;k x;k 6- fxjQ~rkjh ds ckn dgka ij j[kk x;k gS 7- fe=@lEcU/kh dk uke o irk ftls lwpuk nsuh gS fnukad% Fkkuk dk Hkkjlk/kd vf/kdkjh Fkkuk tuin izk:i 3 fxjQ~rkj O;fDr ds 'kjhj fujh{k.k dk izi= 1- vfHk;qDr dk uke irk 2- vijk/k la[;k o /kkjk 3- fxjQ~rkjh ds le; jhj ij n'f"Vxr pksVks dk fooj.k ;fn dksbZ gks 4- fpfdRlh; ijh{k.k gsrq Hkstus dk fnukad o le;
5- fdlds lkFk Hkstk x;k uke o in uke izk:i 4 jsfM;ksxzke@QSDl lsok esa ------------------------- v/;{k] fof/kd lgk;rk laxBu ------------------------- ,oa iqfyl v/kh{kd tuin ----------------
izs"kd ------------------------- Fkkuk/;{k Fkkuk ---------------------------- tuin ------------------------------------------
la[;k ---------------------------------- fnukad ------------------------------------------------------------------------
Jh --------------------------------------------------------------------------------------------- iq= Jh ----------------------------------------------------------- fuoklh -----------------------------------------------------------------dks eq0 v0 la[;k --------------------------------------------------------- /kkjk --------------------------------------------------------------------- Fkkuk ------------------------------------------------------------ tuin ------------------------------------ ds vUrxZr Jh fxjQ~rkj djus okys vf/kdkjh dk uke o in }kjk fnukad ----------------------------- dks le; ------------------------------- cts LFkku fxjQ~rkjh dk LFkku ls fxjQ~rkj fd;k x;k gS ftls Fkkuk @bdkbZ ------------------------------------- tuin --------------------------------------------------- dh vfHkj{kk esa j[kk x;k gSA d`i;k Jh ---------------------------------------------------------iq= Jh -----------------------------fuoklh ---------------------------------------dks rn~uqlkj rRdky lwfpr djsa------------------------------------------------------------------------------------------------
Fkkuk/;{k Fkkuk tuin izk:i 5 iwNrkaN djus okys O;fDr;ksa @vf/kdkfj;ksa dk jftLVj Fkkuk -------------------------------------------------------------- tuin -----------------------------------------------------
fxjQ~rkj O;fDr dk uke firk dk uke vLFkk;h ,oa LFkk;h fuokl vi0 la0] /kkjk] Fkkuk tuin le; o fnukad fxjQ~rkjh dk fnukad le; o LFkku fxjQ~rkj djus okys vf/kdkjh deZpkjh dk uke in o fu;qfDr LFkku iqNrkN djus okys vf/kdkjh@deZpkjh dk uke ,oa in iqWNrkWN djus dh vof/k vU; fooj.k
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15. The Director General of Police is even otherwise authorized to frame regulations under Section 12 of the Police Act, 1861 subject to approval of the State Government. The aforesaid Circulars of 1997 and 2002 quoted herein above are in vogue even today as informed by the learned Addl. Chief Standing Counsel.
16. There is yet another provision which deserves to be taken notice of and that is Regulation 153 contained in Chapter XIII of the U.P. Police Regulations quoted herein below:
153. When any person is arrested in the course of an investigation, the investigating officer shall, at the first step in the investigation subsequent to the arrest, ask him whether he has any complaint to make of ill-treatment by the police and shall record in the case diary both question and answer. He shall also then and there, subject to the consent of prisoner, examine the prisoner's body to see whether there is any marks of ill-treatment and shall record the result of this examination, certifying in his diary of investigation whether to the best of his knowledge and belief the prisoner has suffered ill-treatment or not, and whether he has marks of ill-treatment on his person. Should the prisoner refuse to allow his body to be examined, the refusal and reasons given for it shall be recorded. If an allegation of ill-treatment is made or if marks of ill-treatment are found on the prisoner's person, the investigating officer shall so far suspend the investigation on which the prisoner has been arrested, as to forward the prisoner with his complaint, the record of corporal examination, any other evidence available, and, if possible, the police officers implicated by the prisoner's complaint, to the nearest magistrate having jurisdiction to inquire into the case. Whenever such action is taken the Superintendent of Police must be informed immediately.
The same procedure shall be followed by the Officer-in-charge of a station in the case of persons arrested otherwise than in the course of police investigation. In such cases question and answer shall be recorded in the general diary of the police station.
17. The Code of Criminal Procedure was ultimately amended by Act No. 25 of 2005 which received ascent from His Excellency the President on 23.6.2005. Section 50A, as added by the aforesaid amendments, reads as follows:
7. Insertion of new Section 50A After Section 50 of the principal Act, the following section shall be inserted, namely:
50A. Obligation of person making arrest to inform about the arrest, etc. to a nominated person.- (1) every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relative or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information.
(2) The police officer shall inform the arrested person of his rights under Sub-section (1) soon as he is brought to the police station.
(3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as may be prescribed in this behalf by the State Government.
(4) It shall be the duty of the Magistrate before whom such arrested person is produced to satisfy himself that the requirements of Sub-section (2) and Sub-section (3) have been complied with in respect of such arrested person.
18. Learned Counsel for the applicant Sri P.K. Singh has urged that a perusal of the provisions of Section 50-A in particular and other provisions of the Criminal Procedure Code would indicate that all the guidelines as contained in D.K. Basu's case have not been included in verbatim and, therefore, the said decision still holds the field. He contends that action can be taken for contempt and he has laid emphasis on the recommendations made by the Law Commission in its 177th report referred to herein above. He urges that the provisions in Criminal Procedure Code are not exhaustive and even otherwise there is no corresponding provision in the Indian Penal code so as to provide for an adequate punishment in case the aforesaid guidelines are violated by any police officer. He contends that there is only a partial compliance of the guidelines and mere codification of the said guidelines would not render the implementation effective unless and until there is a provision for punishing the authority in the event of non-compliance. In this view of the matter, he contends that even otherwise the power of contempt can be exercised which is one of the effective instruments for ensuring the rule of law and upholding the majesty of the courts and the directions issued by it. It is for this reason that the Apex Court in D.K. Basu's case had categorically indicated that the power of contempt would be exercised by the respective High Courts in case a complaint is lodged for any disobedience of the directions contained therein. According to Sri Singh, the impact of the said judgment is not at all taken away by the introduction of the various provisions in the amending Act and even otherwise this Court continues to retain the power to punish for contempt as envisaged under Article 215 of the Constitution of India read with the provisions of the contempt of Courts Act, 1971.
19. Replying to the aforesaid contentions raised, the learned Advocate General Sri S.M.A. Kazmi, has urged that Section 50-A by itself is illustrative and not exhaustive. He further contends that the measures undertaken by the police authorities which are reflected in the Circulars issued by the Director General of Police clearly demonstrate that due care has been taken by the State Government to implement the guidelines contained in D.K. Basu's case in its letter and spirit and that the said measures are in addition to and supplement the amendments brought about in the Code of Criminal Procedure through Act No. 25 of 2005. He contends that D.K. Basu's case clearly spells out that these guidelines shall be followed till legal provisions are made. The contention on behalf of the State is that once the provisions have been incorporated in the Code of Criminal Procedure and measures have been undertaken by the State Authorities to implement the same through the police circulars referred to herein above, then the guidelines contained in D.K. Basu's case and measures for implementation thereof are not available to the applicant as appropriate legal provisions have been brought in existence for that purpose. Supplementing his submissions, he has urged that these guidelines were framed with the objective of preventing custodial violence and in case any violation is alleged, the same can be taken care of by institution of appropriate criminal proceedings against the officer concerned or resorting to departmental inquiry as any violation of law can be a ground to constitute misconduct. He contends that these guidelines were framed for meeting certain basic requirements for the protection of the fundamental rights guaranteed under Article 21 & 22 of the Constitution of India. According to him all the basic requirements as indicated in D.K. Basu's judgment have been taken care of by introducing the aforesaid legal provisions and administrative circulars and, therefore, no shelter is now available to be taken by an aggrieved person by invoking the contempt jurisdiction of this Court.
20. The first question, therefore, to be delved into is as to whether the amendments brought about through Act No. 25 of 2005 are sufficient enough to substantially incorporate within its fold, the intentions indicated in D.K. Basu's case. The second question which needs to be answered is, as to whether, in the event it is found that the guidelines are not sufficiently incorporated, then in that situation does D.K. Basu's case still continues to hold the field and make the authority liable for contempt in the event of non compliance of the said guidelines. As a natural corollary to be answered to the issues raised the third question which would require consideration is, as to whether even otherwise the inherent power of contempt under Article 215 of the Constitution of India would still be available to the Court in such a situation.
21. To appreciate the aforesaid submissions and answer the questions arising therefrom, it would be appropriate to make a comparative study of the basic requirements as spelled out in D.K. Basil's case and the provisions which are now available after amendment in the Criminal Procedure Code. The eleven guidelines indicated in D.K. Basil's case-indicate that the first requirement is that the identity of the police personnel proceeding to carry out the arrest should be visible and should be recorded in a register. The second requirement is that a memo of arrest shall be prepared which shall be witnessed by either a member of a family of the arrestee or a respectable person of the locality, and the same shall be countersigned by the arrestee indicating the date, time and place of arrest. The direction No. 3 substantially contains a provision for information being tendered to a friend or relative or other person known to the arrestee, as soon as practicable, unless the attesting witness is the same person who is the same person in the category of a relative, friend or person known to the arrestee. A perusal of Item Nos. 1, 2 and 3 of the said guidelines indicates the stage of preventive detention.
22. These provisions appeared to have been incorporated by the insertion of Section 50-A. The direction Nos. 4, 5 & 6 in D.K. Basu's case also appear to be taken care of in the aforesaid provisions.
23. Chapter V of the Code of Criminal Procedure also indicates measures which are to be taken at the time of arrest and even thereafter in order to ensure that a person receives a fair treatment. However, the shortcomings in the aforesaid provisions were sought to be remedied keeping in view the mandate of Article 21 of the Constitution in D.K. Basu's case. The introduction of Section 53A and the amendment in Section 53 as also the amendments in Section 54 indicate medical examination being made with specific reference to rape cases in order to avoid any such shortcoming. These amendments were brought about presumably keeping in view the aforesaid directions contained in D.K. Basu's case. Apart from this, the police circulars which have been referred to herein above as applicable in the State of U.P., it is evident that the State of U.P. has taken care of such situations through the said circulars. Not only this, the aforesaid directives have been indicated to be compulsorily carried out in the Circulars dated 29.3.1997 and 14.4.2002. The proforma which has to be filled and has been quoted herein above also indicates the compliance of the aforesaid basic requirement indicated in D.K. Basu's case. The proforma of the F.I.R. has ; also been suitably modified to indicate the aforesaid information and ensure compliance thereof. With the support of these Circulars the learned Advocate General has urged that they supplement the provisions of Section 50-A of the Code and are in addition to it. It is for this reason that it has been urged that Section 50-A is illustrative and not exhaustive. The object of the judgment of D.K. Basu's case was to provide for proection against unlawful detention. Such basic requirements have to be fulfilled even during the process of carrying out the arrest. The contention of the learned Counsel for the applicant Sri P.K. Singh to this extent appears to be correct that these are measures suggested for preventive detention in order to avoid custodial violence. The question, therefore, is do these requirements as enumerated under the Criminal Procedure Code as amended up to date and the Circulars referred to herein above substantially comply with the judgment in D.K. Basu's case. It would be useful to remind ourselves that the judgment of a Court of law cannot be read like a Euclid's Theorem. It is the pith and substance of the intention of the Court which has to be focussed on. The intent as expressed in the judgment of D.K. Basu's case is to provide for ample insulation from the abuse of powers by the authorities and preventing them from acting in any manner which may amount to custodial violence. Another point that deserves to be considered is that the aforesaid decision of the Supreme Court and the reports of the Law Commission were very much before the Parliament when the amendments as suggested were formally incorporated in the shape of legal provisions. The legislature will be presumed to have considered the impact of the aforesaid provisions making room for sufficient protection from instances and occurrences of custodial violence. Most of the provisions substantially engraft the basic requirement as contained in the guidelines of D.K. Basu's case. The judgment of the Supreme Court has not to be read like a Statute. However, it has to be further examined as to whether there are certain grey areas which require to be substantially incorporated in the Act itself. To a certain extent, learned Counsel for the applicant Sri P. K. Singh is right in saying that the provisions do not indicate the bodily lifting of the guidelines and placing it word by word in the amendments brought about. At the same time, however, one cannot ignore the police circulars dated 29.3.1997 and 14.4.2002 which exactly adopt all the said guidelines and direct its compliance by the police authorities. In such a situation, the arguments of the learned Advocate General appear to be appealing that adequate care has been taken atleast by the State Authorities to make a provision lawfully by the issuance of police circulars making provisions as desired by the Apex Court. He contends and rightly so that the said police circulars still continue to be in force and supplement the provisions contained in the Criminal Procedure Code. In view of this, even if the guidelines in D.K. Basu's case have not been quoted in verbatim in the Statute, it can be safely presumed that the State Government has taken care of the situation by itself issuing the circulars which continue to be in force even today in addition to the amendments brought about in the Criminal Procedure Code.
24. The question as to whether these provisions require to be incorporated in the Statute itself or not or whether the Statute does take care of the situation as well or not can be better answered if the Union of India is also put to notice by this Court and arguments are invited on their behalf with a request to the Attorney General of India to provide assistance in the matter.
25. The other question as to the making of any law, providing for penal action in the cases of custodial violence is concerned, the report of the 177th Law Commission quoted herein above indicates that the provisions already existing in the Indian Penal Code contained in Section 166 thereof do not in any way dilute the powers of the Court under the Contempt of Courts Act. The report of Law Commission indicates that the power of contempt continues to be available to the Court to take action in such matters, A perusal of Article 215 read with the Contempt of Courts Act, indicates that such power can be exercised in the event the orders are violated in relation to the proceedings of the High Court or the Courts subordinate to it. In the instant case, the Supreme Court by way of a direction which presumably is under Article 142 of the Constitution has provided for a penal action by drawing proceedings of contempt. The judgment also indicates that the departmental action against an erring official could also be taken. The aforesaid directions of the Supreme Court in effect expand the powers which are inherent in every High Court under Article 215 of the Constitution of India. The aforesaid directions were presumably made in order to make effective the guidelines contained therein as it would not be possible for every litigant to approach the Supreme Court for any such action in case warranted on the facts of a case. The concerned High Court having territorial jurisdiction over the matter was, therefore, authorized to entertain proceedings of contempt in case they are instituted for violation of the aforesaid guidelines. The question, therefore, arises is as to whether such conferment of jurisdiction on the High Courts was of a transitory nature or does it still continue to authorize the High Court to draw proceedings of contempt after the aforesaid legal provisions have been made for protecting custodial violence. A perusal of the provisions of the Indian Penal Code do not indicate any further corresponding amendments having been brought about for taking penal action for violation of any such guidelines. There are provisions under the Indian Penal Code ensuring criminal prosecution in the event any offences are committed of the nature as defined in the said Act. The same also includes the provisions which constitute a criminal offence in case a public servant disobeys law with any criminal intent. It is in this context that Section 166 of the Indian Penal Code was also considered by the Law Commission while rendering its recommendation. The learned Advocate General has submitted that an authority or police personnel committing any such offence is liable to criminal prosecution and is also liable for departmental action as any such act which is in violation of Law will constitute a misconduct. The question is as to whether any further amendment was required in order to fulfill this basic requirement is a question which deserves to be answered. It is evident from a perusal of the amendments which have been brought about through Act No. 25 of 2005 that no corresponding provisions have been made either in the Criminal Procedure Code or in the Indian Penal Code specifying penal action for violation of the said guidelines. The provision which has been added in Section 50-A, is that the duty of the Magistrate shall be to satisfy himself that the requirements of Sub-section (2) and (3) of the said section have been complied with. There is no further recital that in case the Magistrate is not satisfied about the said requirement, what action in law would be permissible. In such circumstances, the argument of the learned Counsel for the applicant deserves to be given due weight as to why further provisions by way of amendment in cases of specific violation of the said guidelines have not been provided and if that is so then in that event the power of contempt of this Court can be exercised for punishing an errant official.
26. On the basis of the aforesaid conclusions, in the opinion of the Court, it will be more appropriate that a final pronouncement is given only after this Court provides an opportunity to the Union of India to assist the Court on the aforesaid issues which have probably not received attention and have not been answered as yet by any Court of law. Accordingly, let a notice issue to the Union of India through Secretary, Ministry of Home Affairs, Government of India, with a request to the Attorney General of India to appropriately assist this Court on the aforesaid issues as the same requires the interpretation of a Parliamentary Act namely the provisions brought about by way of an amendment through Act No. 25 of 2005.
27. A certified copy of this order shall be provided to the learned Assistant Solicitor General of India at the Allahabad High Court for being transmitted with a request to the Attorney General for necessary action in the matter.
28. The matter shall be listed after 6 weeks on 15.3.2007.